Published on 4 July 2022
SECOND SECTION
Application no. 4662/22
Ali Ahmet Jafaar MOHAMED
against Serbia
lodged on 21 January 2022
communicated on 14 June 2022
SUBJECT MATTER OF THE CASE
The application concerns the applicant’s extradition from Serbia to Bahrain, which was carried out in disregard of an interim measure granted by the Court under Rule 39 of the Rules of Court.
The applicant is a Bahraini national. He claims that he was tortured by Bahraini security officers for his taking part in street protests against alleged discrimination by the Sunni-dominated government against Shia Muslim community in 2007. He fled his country out of fear of persecution following another round of protests in 2011. In 2013 the applicant was convicted, in absentia, of various terrorist-related offences and handed a life sentence. The applicant alleges that there are other convictions against him, but does not provide any evidence in that regard. On 3 November 2021 he was arrested in Serbia on the basis of an international arrest warrant issued at Bahrain’s request in connection with his 2013 conviction. Having obtained assurances from Bahrain that the applicant would receive a retrial, on 7 December 2021 the Belgrade High Court granted the request for extradition and on 17 January 2022 the Belgrade Court of Appeal upheld that decision. On 18 January 2022 the Ministry of Justice allowed the applicant’s extradition to Bahrain underlying that he could not be prosecuted, sentenced or detained for any other offence committed prior to his extradition unless Serbia consented. In the context of the extradition proceedings, the applicant complained about the situation of political dissidents and members of the Shia community in Bahrain. However, it would appear that he did not formally apply for asylum.
Following the applicant’s request, on 21 January 2022 the Court granted the interim measure ordering Serbia to avert from extraditing the applicant until 25 February 2022 and requested more information on whether the applicant would be entitled to release on parole in Bahrain, the possible risks of torture and/or ill-treatment that he would face if extradited to Bahrain and his access to the asylum procedure in Serbia. The applicant was, however, extradited on 24 January 2022. Accordingly, on 28 January 2022 the Court lifted the interim measure. His subsequent constitutional appeal is still pending before the Constitutional Court of Serbia.
The applicant complains under Article 3 of the Convention that there were substantial grounds for believing at the time of his extradition that, if extradited, he would face a real risk of being subjected to torture or to inhuman or degrading treatment, and that the domestic authorities did not take these grounds into consideration when deciding about his extradition. He further complains under the same Article of the Convention that his extradition exposed him to a life prison sentence with no prospect of ever being released, and that the domestic authorities did not take this risk into consideration either when deciding about his extradition. The applicant also complains under Article 13 of the Convention that he did not have at his disposal an effective domestic remedy for his complaints under Article 3, and in particular that the domestic authorities refused to accept his application for asylum. Lastly, the applicant complains that his extradition to Bahrain, in breach of the Court’s indication under Rule 39 of the Rules of Court, gave rise to a violation of Article 34 of the Convention.
QUESTIONS TO THE PARTIES
1. Has the applicant exhausted all effective domestic remedies in respect of his complaints raised before the Court, as required by Article 35 § 1 of the Convention?
2. Were there substantial grounds for believing at the time of the applicant’s extradition, that, if extradited, he would face a real risk of being subjected to treatment contrary to Article 3 of the Convention? Furthermore, before deciding on his extradition, did the Serbian authorities consider the applicant’s claim in that connection (see, for example, J.K. and Others v. Sweden [GC], no. 59166/12, 23 August 2016)?
The parties are invited to submit information about the alleged policy of torture and ill-treatment of political dissidents and members of the Shia community in Bahrain.
3. Was the applicant’s extradition to Bahrain in breach of Article 3 of the Convention having regard to the possible risk of a life sentence that precludes early release and/or release on parole de jure and de facto? Furthermore, before deciding on his extradition, did the Serbian authorities consider this risk (see, in particular, Kafkaris v. Cyprus [GC], no. 21906/04, ECHR 2008; Harkins and Edwards v. the United Kingdom, nos. 9146/07 and 32650/07, 17 January 2012; Vinter and Others v. the United Kingdom [GC], nos. 66069/09, 130/10 and 3896/10, ECHR 2013 (extracts); Trabelsi v. Belgium, no. 140/10, ECHR 2014 (extracts); and Lopez Elorza v. Spain, no. 30614/15, 12 December 2017)?
The parties are requested to provide documentary evidence of the relevant sentencing practices of the trial courts in Bahrain in similar proceedings.
4. Did the applicant have at his disposal an effective domestic remedy for his complaints under Article 3 of the Convention, as required by Article 13 of the Convention? Were the extradition authorities empowered to, and were they obliged to, examine the applicant’s Article 3 complaints in the context of the extradition proceedings? Is an application for asylum the only effective domestic remedy for complaints under Article 3 in extradition proceedings? If so, was the applicant provided with an opportunity to access the asylum procedure in Serbia (see, for example, Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 203, ECHR 2012)? Could an intention to apply for asylum (namera da se podnese zahtev za azil) pursuant to section 35 of the 2018 Asylum Act (Zakon o azilu i privremenoj zaštiti) be expressed in the presence of other authorities than those indicated in that provision (namely, police officers or officials present at the premises of asylum or immigration shelters)? Notably, could such an intention be expressed in the presence of prison authorities (if the person concerned is in detention) or judicial authorities (in the context of extradition proceedings)? Could an application for asylum be lodged even if no intention to apply for asylum had beforehand been expressed pursuant to section 35 of the 2018 Asylum Act? Could an application for asylum be formally lodged by email or post? Having regard to the obligation of the person applying for asylum to be present while lodging an application for asylum (section 36 (4) of the 2018 Asylum Act), what is the procedure if the person concerned is in detention (like the present applicant was at the relevant time)? Does an asylum request have automatic suspensive effect against extradition? Does expressing an intention to apply for asylum pursuant to section 35 of the 2018 Asylum Act have such an effect? Did the applicant actually express an intention to apply for asylum pursuant to section 35 of the 2018 Asylum Act or make a request for asylum pursuant to section 36 of that Act?
The Government are requested to submit, in support of their response, documentary evidence, concerning both the applicable legal framework and the practice of the national authorities in this respect.
5. Was the applicant’s extradition, despite the fact that the Court had issued an interim measure requesting the respondent Government not to extradite him, contrary to Article 34 of the Convention (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, §§ 128-129, ECHR 2005 I)? Was there an objective impediment which prevented compliance with the Court’s Rule 39 measure? Did the Government take all reasonable steps to remove the impediment and to keep the Court informed of the situation (see Paladi v. Moldova [GC], no. 39806/05, § 92, 10 July 2009, and Rrapo v. Albania, no. 58555/10, § 75-88, 25 September 2012)?
6. Having regard to the applicant’s claim that he came to Serbia to study, he is requested to indicate whether he had obtained a student visa, and if not, why not? Lastly, why did he have on him a forged Serbian passport at the time of his arrest (as noted in the detention order)?